Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative referred to the written communication already provided to the Conference Committee and recalled that during the discussion in the Conference Committee in 2005 of that case, her Government had noted that Convention No. 144 was a very flexible, promotional instrument which allowed for consultations to be conducted in a manner that was best suited to national conditions and practice. In her Government's view, the mechanism for tripartite consultations on questions relating to ILO standards, which had been established before the adoption of the Convention and its ratification by the United States, continued to be effective and appropriate to the national situation.

It was important for the Conference Committee to understand that the President's Committee on the ILO was more than just a formal body; it was, in fact, a broad-ranging mechanism for tripartite consultation. The Committee itself only met when warranted by issues that required decision at the highest level. However, tripartite consultations did not stop because there was no formal meeting of the President's Committee. The speaker explained that the bulk of the ILO consultations were conducted less formally at the staff level and covered a broad range of ILO matters considerably exceeding what was required in Article 5(1) of Convention No. 144. The tripartite consultations that were held in the context of the drafting of the Maritime Labour Convention were a particularly good example in that respect.

Turning to the issue of consultations on ratification of ILO Conventions, she observed that much of what had been said about the implementation by the United States of Convention No. 144 related to the country's ratification of ILO Conventions. The speaker acknowledged that her Government would not ratify a Convention unless or until law and practice were in full conformity with its provisions. It was true that the legal review process had resulted in a very slow process towards ratification but this was preferred to ratifying first and assessing compliance later.

Turning to her Government's commitment to tripartism, she pointed out that the President's Committee mechanism now allowed for other interested organizations of workers and employers who had a legitimate interest and rationale for doing so to participate and be kept informed about ILO standards-related issues. As such, the right of United States workers and employers had been acknowledged to decide for themselves who should represent them on the President's Committee. The speaker recalled the Committee of Experts' view that effective tripartite consultations were those that enabled employers' and workers' organizations to have a useful say in ILO matters. In that regard, her Government continued to believe that the tripartite consultations in the United States were effective. In conclusion, she recalled the Committee of Experts' request to both the United States Government and the social partners to re-examine the manner in which Convention No. 144 was being applied in order to ensure that all stakeholders take appropriate measures to achieve a satisfactory solution. She expressed her personal commitment to respond to the Committee of Experts' call for action, and she looked forward to working with the social partners concerned in that endeavour.

The Employer members recalled that the Convention sought to establish tripartite mechanisms to promote the application of international labour standards. To undertake such a task, it provided for the implementation of procedures ensuring effective tripartite consultations on various issues relating to the ILO, such as those referring to items on the agenda of the International Labour Conference, the submission of Conventions and Recommendations, examination of non-ratified Conventions and denunciation of ratified Conventions. It was therefore necessary to determine whether consultations existed and their effectiveness or lack thereof. Before doing so, the Employer members felt it important to clarify two issues. Firstly, the Convention sought to promote the application of international labour standards through a system of consultation or collaboration and to facilitate tripartite consideration of the possible benefits of ratifying or not Conventions. It did not expressly seek to promote a greater or lesser number of ratifications. Therefore, it was irrelevant to analyse how many Conventions a particular country had ratified.

Secondly, the Employer members felt that it was inappropriate to become involved in considering the level of influence exercised by social partners in the Government's decisions or commitments as a result of tripartite consultations. Instead, they felt that it was important to determine what was meant by "effective consultations". No definition was given in the Convention, but by following various legislative criteria, effective consultation could be considered as the transmission of relevant information to social partners so that they could become aware of a topic and examine it, and as the exchange of opinions and contributions on matters relating to ILO activities. With regard to the form taken by effective consultations, the Employer members indicated that the Convention referred to national procedures. Was it necessary for consultations to take place during one meeting or during several? Should meetings be held at the highest level or at a more technical level? Should a formal consultation procedure be established in writing or should it be more informal? The Employer members felt that the nature and form of consultations could be significant, but at the same time, could vary by country. In many cases, there were formal consultations with numerous meetings and documentation, but which were considered no more than a formality with limited effectiveness. The crux of the matter was for relevant information to be supplied on time, with the social partners able to make their contributions in order to influence the final decision through their opinions and submissions. Nevertheless, they stressed that in no way did it amount to a question of negotiation or agreement.

The Employer members felt that in the United States, that obligation had been channelled through a consultation system established some years earlier, consisting of a political body and two technical bodies. The former, the President's Committee, met only when decisions were required at the highest level. It had met six times since 1988 and not at all since 2000. In addition to the President's Committee, there was a consultative group on ILO matters that channelled consultations relating to items on the International Labour Conference agenda, as well as tackling issues relating to the Governing Body and the application and ratification of ILO Conventions. A further body, the Tripartite Advisory Panel on International Labour Standards (TAPILS) was established specifically to examine the legal feasibility of ratifying selected ILO Conventions. Those technical consultative bodies had met regularly, the former on six occasions and the latter at least once. They considered issues to which the Convention referred, and took into account meetings before and after the ILO Conference and Governing Body, and issues relating to the ratification of at least two Conventions.

The Employer members indicated that there was insufficient proof of an absence of regular meetings in respect of the Convention or that the information provided was not suitable or not provided in time. There was also insufficient proof that the social partners were unable to give their opinions before decisions were taken. They felt that the Government representative supplied information on the Convention's application since 2005 and indicated that they were willing to receive further details and information that would enable them to have a more complete overview of the Convention's application in practice.

The Worker members recalled that the issue of the application of the Convention in the United States had already been addressed in 2005. They appreciated the fact that the Government had provided in advance additional information in the form of a written communication. As regards the substance, they noted that the spirit of Convention No. 144 was to institutionalize an effective and pragmatic process of tripartite consultations ultimately aiming at ratifying ILO Conventions. Yet, to date, the United States had merely ratified 12 Conventions, of which only two were fundamental Conventions: Convention No. 105 and Convention No. 182. In the conclusions of this Committee in 2005, it noted the information regarding the procedure for the ratification of Conventions Nos 111 and 185 and expressed the hope that the consultations announced in this regard would take place as soon as possible. Furthermore, Convention No. 144 sought to establish a favourable framework for the implementation of Conventions Nos 87 and 98. A restrictive interpretation of Convention No. 144 would therefore compromise, on the one hand, the role of workers' organizations and, on the other hand, the impact of ILO standards in every country. The Convention certainly allowed for the division of the foreseen procedure between two bodies, as was the case in the United States, with, on the one side, the President's Committee on the ILO, and, on the other side, the TAPILS. Of course Convention No. 144 did not indicate the intervals at which consultations are to take place, and the effectiveness of the tripartite consultations could not be measured solely by the number of tripartite meetings that had been organized. However, when a country ratifies a Convention it must be applied both in letter and spirit. The Worker members believed, however, that the particularities of the mechanism, whatever it might be, should not be utilized to slow down the process. Moreover, they firmly rejected the view of solely envisaging the ratification of those Conventions that did not require modification of national legislation, since such a strategy would destroy hopes for a positive development of social legislation of all States adhering to it. Given that the whole world looked to the United States, it was imperative that the country undertook to reinvigorate the competent bodies for tripartite consultations and seriously considered ratifying the ILO fundamental Conventions.

The Worker member of the United States noted that the issue was not the mechanism for tripartite consultation, but rather the fact that the current Administration had allowed the tripartite process to languish. As had been noted by the Committee of Experts in its observation, the Government had failed to respond to the comments made by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). It was only after submission of the written response to the Conference Committee, that the Government's position was known. The speaker questioned the Government's stated commitment and pointed out that while the President's Committee had been established as the pinnacle of tripartite consultative mechanisms, the Secretary of Labor had failed to call one single meeting over the past seven years. This was the longest period of inactivity of the President's Committee since 1989.

Turning to the United States framework for carrying out the tripartite consultative process, she indicated that, in addition to the President's Committee, two other mechanisms existed, notably the TAPILS and the Consultative Group. According to the United States Government, the primary purpose of TAPILS was to examine the national law and practice relating to selected ILO Conventions with a view to considering the legal implications of ratification or other appropriate action. However, the lack of a serious agenda for TAPILS underscored the fact that the Government had engaged in no serious effort to ratify Conventions Nos 111 and 185 despite the fact that those Conventions had been under consideration for possible ratification for some time. The speaker pointed to the fact that a working group had met once to discuss the law and practice report with respect to Convention No. 111 but that a final report had yet to be produced. A similar problem existed with regard to Convention No. 185. The Worker member of the United States was surprised to hear from the Government that the TAPILS process would be reviewed as soon as an internal governmental review of the Convention was completed. No explanations were given as to the timing of such a review. The only explanation that had been given was that the review touched upon national security issues - the usual fallback for every action that the current Administration took when it wanted to avoid public scrutiny.

Turning to the meetings of the Consultative Group, she contested the Government's view that it was engaged in tripartism only because the Consultative Group met prior to the ILO Governing Body and the International Labour Conference. In her view, these meetings did not amount to effective consultation and stood in stark contrast to the kind of discussions that the Consultative Group had been engaged in prior to the current Administration.

Further, she expressed her concern over another disturbing development since 2005, which was the change in the composition of the President's Committee. The purpose of this was to delete reference to the AFL-CIO as the workers' representative and the United States Council for International Business as the employers' representative. Instead, the Secretary of Labor would decide who would be represented at the Committee. This was done without notice and prior consultation. In this context, the Department of Labor had twice called a meeting of all international presidents to discuss the composition of the delegation to the Conference in 2006 and 2007 despite the fact that no union or the AFL-CIO had expressed the need for such a meeting. In sum, she felt that the Government's meddling in the affairs of the workers hardly amounted to a commitment to tripartism, on the contrary.

The Worker member of Greece raised a question directed at the Government representative concerning the reasons why the Government of the United States lagged behind the overwhelming majority of ILO Members in the ratification of Conventions, including those that were the foundation of the 1998 Declaration.

The Government member of Cuba stated that tripartite dialogue on international labour standards constituted an effective mechanism to achieve not only ratification, but also to apply effectively ILO Conventions in law and in practice. Therefore, the ILO supervisory bodies should pay special attention to complying with that principle in their activities and to applying those standards at the national level. She felt that as regards promoting the ratification of fundamental Conventions, priority should be given to those countries which applied a restrictive policy on ratification, since although ratification in itself did not prove its application, it entailed a willingness to assess and modify aspects of legislation and practice through the effective application of the ratified standards. In the particular case, the ratification and effective application of Convention No. 87 should be promoted, since it was the cornerstone of tripartite consultation under Convention No. 144.

The Worker member of India pointed out that in June 2005 the Conference Committee had rightfully developed the hope that the consultations concerning ratification of Conventions Nos 111 and 185 would be concluded in the near future. However, such hope and aspiration of the workers of the United States had not been fulfilled through sheer neglect of the United States Administration. In spite of the 1998 ILO Declaration on Fundamental Principles and Rights at Work, the United States Government had failed or neglected to ratify ILO fundamental Conventions such as the Forced Labour Convention, 1930 (No. 29); the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); the Equal Remuneration Convention, 1951 (No. 100); the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the Minimum Age Convention, 1973 (No. 138). Instead, it preferred to isolate itself from other countries while at the same time preaching to other countries about their obligations to apply labour standards. The fact that the United States had so far ratified only 12 ILO Conventions only indicated what could be the fate of Convention No. 144. The speaker urged the Committee of Experts to ensure that the issues that had been raised by the AFL-CIO concerning fruitful tripartite consultations could be resolved appropriately and that the American workers were given their fundamental rights enshrined in the ILO Constitution.

An observer representing the World Federation of Trade Unions indicated that the current case not only referred to a violation of Convention No. 144, but also to the Government's refusal to ratify significant Conventions, such as Nos 87 and 98. She expressed her solidarity with the United States workers and rejected the Government's obvious intention to appoint trade union representatives in consultative committees. Such an appointment was the trade unions' sovereign right.

The Government representative indicated that her Government would respond to all the points that had been raised in the debate and provide information on subsequent developments in a detailed report for the Committee of Experts' next session. She reiterated that the existing tripartite consultation mechanism was an effective means of implementing the Convention. However, tripartite dialogue did not necessarily mean agreement. The ILO Constitution, the records of the Credential Committee of the Conference and the 2000 General Survey on tripartite consultation made it clear that there could be more than one most representative organization of employers and workers in any given country. She recalled that the Government had made it possible for American workers and employers to decide for themselves who should represent them on the President's Committee. The Government was looking forward to exploring with workers' and employers' representatives how to respond best to the observation of the Committee of Experts on the Convention, which was addressed to all the parties.

The Employer members indicated that the significance of the Convention lay in the implementation of dialogue mechanisms to improve the atmosphere of cooperation and the application and ratification of international labour standards. They felt that the discussions demonstrated that there were no serious issues concerning the Convention's application in the particular case. Nevertheless, they recognized that all systems could be improved and in that respect, indicated that any requests or contributions could be taken into account, since that would benefit the consultation procedures.

The Worker members reiterated that by ratifying Convention No. 144, the Government was required to uphold both its letter and spirit. It therefore fell to the Government to re-energize the competent authorities in respect of tripartite consultations. It was further incumbent on the Government to take a different approach and contemplate ratifying ILO standards even when they entailed amending domestic legislation. The Worker members looked forward to the ratification of Conventions Nos 111 and 185. Moreover, taking into account the influential role played by the United States on the world stage, they expressed the firm hope that the country would soon ratify other Conventions, particularly the fundamental Conventions, which remained outstanding. The Worker members felt that possible recourse to technical working groups, as was suggested by the Employer members, could undoubtedly be of benefit in terms of effectiveness, but as far as tripartite consultations were concerned, the crux of the matter lay in genuine and honest political will. Lastly, they asserted that it was not the responsibility of the Department of Labor but of the workers' organizations themselves to nominate the trade union organization called to sit on the consultative bodies.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative stated that the United States took its obligations under ratified Conventions very seriously. She pointed out that the United States had ratified Convention No. 144 in 1988 and since then had submitted eight reports under article 22 of the ILO Constitution, describing the mechanism for tripartite consultations on ILO matters and supplying details and documentation on the wide range of consultations held.

She recalled that tripartite arrangements had been established in 1975 when the United States was contemplating withdrawal from the ILO. There had been tripartite consultation at the highest level on the decision to withdraw and, during the period of withdrawal, on whether and when to return. The mechanism was a Cabinet Level Committee that included the President of the AFL-CIO and a representative from the United States Chamber of Commerce. Upon rejoining the ILO in February 1980, the United States formalized the Cabinet Level Committee as a federal advisory committee called the President's Committee on the ILO. This structure was established on the basis of consultation with, and agreement of, the representative worker and employer organizations, and ensured that those organizations would be able to act in full independence. In fact, it was significant in terms of Convention No. 144 that the United States business community itself had decided that the United States Council for International Business would replace the Chamber of Commerce on the new tripartite committee.

The President's Committee was the pinnacle of the tripartite mechanism and provided for consultation at the highest level. More continual consultation occurred through a staff-level consultative group and in the Tripartite Advisory Panel on International Labour Standards (TAPILS) that was created specifically to examine the legal feasibility of ratifying selected ILO Conventions. One of the first conventions that TAPILS had examined was Convention No. 144. After an extensive review, TAPILS had unanimously concluded and reported to the President's Committee that existing United States practice gave full effect to the Convention. The framework for tripartite consultations had not changed since. The nature of the procedures had been modified somewhat over the years, however, to meet the needs and preferences of the members, and, especially, to take advantage of modern technology. As for the scope of tripartite consultations, the function of the President's Committee was to consult on all matters relating to United States participation in the ILO. Consultations therefore covered a broad spectrum, surpassing the five topics required under Article 5(1) of Convention No. 144.

The speaker pointed out that this was the first time that the Committee of Experts had expressed any concern at all about United States application of the Convention. The question, she noted, was whether tripartite consultations in the United States were effective. In studying the observation, the Government had looked carefully at the most recent General Survey on Convention No. 144 (2000) in order to better understand how the Committee of Experts had interpreted this aspect of the Convention. She noted that, firstly, the Committee of Experts had found that Convention No. 144 was a very flexible, promotional instrument that did not lay out precise requirements as to methods of application, but instead provided wide latitude for adopting procedures that were suited to national conditions and practice. Secondly, the purpose of consultations was to assist the Government in reaching a decision for which it alone had responsibility. The Convention did not require either negotiation or agreement. Third, consultations should not be merely a token gesture. Fourth, consultations did not have to be initiated solely by the Government. And, fifth, the Convention did not require an annual meeting, or for that matter, any meetings at all. Consultations could be based either on an exchange of communications or on discussions within tripartite bodies. Furthermore, although the Convention indicated that consultation should be undertaken at least once a year, it did not require annual consultations on every point in Article 5(1).

Turning to the factual issues of the case, she stated that there had indeed not been a meeting of the President's Committee since May 2000. In fact, since the United States ratified Convention No. 144 in 1988, the President's Committee had met on only six occasions. This was because the President's Committee only met when warranted by ILO-related issues that required a decision at the highest level. The Secretary of Labor would not call a meeting of the President's Committee as a token gesture. Nor would the Secretary call a meeting unless the attendance of the Presidents of the AFL-CIO and the United States Council for International Business was assured. As a consequence, most ILO consultations were held less formally.

The observation also indicated that the TAPILS did not meet during the reporting period. She announced that the Panel had met last month to begin reviewing Convention No. 185 on Seafarers' Identity Documents. With regard to Convention No. 111, progress had been slow. On the basis of a finding by TAPILS that United States law and practice were in full conformity with its provisions, Convention No. 111 had been forwarded by the President in May 1998 to the United States Senate with a request for advice and consent to ratification. Since then, Convention No. 111 had consistently been on a list of treaties that the Executive Branch considered to deserve priority attention. The Senate, however, while apparently not disinclined to consider the Convention, had given precedence to treaties having a direct bearing on national security.

With regard to the Committee of Experts' observation that for the first time since 1991, the Government had not convened a full meeting of the consultative group in preparation of the 2004 ILO Conference, she pointed out that the Department of Labor had in fact scheduled its usual full pre-Conference briefing but learned subsequently that a significant portion of the delegation, particularly from the AFL-CIO, could not attend. Consequently, the meeting had to be rescheduled at a time that could include the AFL-CIO, closer to the opening of the Conference, with more limited attendance. In the 25 years since the United States rejoined the ILO, this had been the first and only time the Department of Labour had failed to organize a full tripartite pre-Conference meeting. This year, the Government had again hosted a full tripartite meeting in preparation of the 2005 ILO Conference.

Finally, in regard to the complaint filed with the Credentials Committee at the 2004 ILO Conference on behalf of the AFL-CIO, she stated that there had not been a drastic change in the number of non-government delegation members financed by the United States Government last year and the issue had been discussed on several occasions in the tripartite Consultative Group. The temporary reduction had been strictly the result of budgetary, rather than political, reasons. This year, her Government had once again financed the same number of worker and employer representatives that it had, on average, funded for the past 17 years.

In conclusion, she believed that United States tripartite consultations on ILO matters were effective and well within the letter and spirit of Convention No. 144. Her Government would continue without fail to provide full details on United States implementation of this priority Convention. The United States Government looked to the tripartite partners to provide their constructive input toward continuing to make tripartite consultation in the United States a dynamic and meaningful process.

The Worker members recalled that Convention No. 144 set forth the obligation for ratifying States to establish, in accordance with national practice, effective tripartite consultations with respect to the matters concerning the activities of the ILO. To contravene these provisions or to interpret this instrument in a restrictive manner imperilled the credibility of trade unions as well as the efficiency of ILO standards in that this Convention created the framework enabling the realization of Conventions Nos. 87 and 98. For the past three years, the Government had not convoked the President's Committee or the Tripartite Advisory Panel on International Labour Standards (TAPILS), the bodies intended to implement Convention No. 144. The AFL-CIO was forced to make a complaint to the Credentials Committee at the 92nd Session of the International Labour Conference due to the fact that the Government had attributed insufficient resources to allow for the participation and functioning of the workers' delegation in all of the Conference's activities. The observation of the Committee of Experts had established that the Government had clearly ceased to be active in the tripartite process and had taken no action toward further ratifications of ILO standards. The structures for tripartite consultations existed but their functioning remained purely virtual. The reason for this attitude by the Government appeared to be based on the principle that no Convention should be ratified if doing so would imply modifications of national legislation. This led to the conclusion that it was pointless to convoke the competent bodies and amounted to the United States Government refusing to recognize the usefulness of ILO standards as instruments for the improvement of labour law. Indeed, such a practice, if not fought energetically, risked leading to a dangerous jurisprudence which would authorize every State which would need to adapt its legislation to ratify a Convention to refuse to set into motion the ratification procedures. In conclusion, the Worker members considered that, in view of the United States' role on the international stage, it was urgent that the Government provide a constructive example and reactivate as soon as possible the competent bodies responsible for tripartite consultation.

The Employer members pointed out that Convention No. 144 was an instrument of high value for the social partners, and that the discussion of this case showed that the ILO supervisory system allowed to establish a dialogue with all the member States which had ratified the conventions regardless of their level of development. It also brings out the fact that there is no negative connotation in inviting a government to provide information to the Conference. The Committee had to assess the manner in which the United States applied in practice the provisions of Convention No. 144. In this regard, the Committee of Experts referred to Article 2, paragraph 1, of the Convention, which provided for the establishment of procedures ensuring effective consultations between representatives of the government, employers and workers on the matters concerning the activities of the ILO.

Concerning, first of all, the procedures: the International Labour Conference intended to allow certain flexibility on the manner in which the consultations had to be conducted. Besides, Article 2, paragraph 2, expressly provided that the procedures should "be determined in each country in accordance with national practice". This approach presumed that different methods could be adopted by different countries, including the use of technologies that allowed for consultations to take place even without having to meet in person, for example, through video-conference on the internet.

Concerning, secondly, the specific activities referred to in Article 5 of the Convention, it should be made clear that the scope of application of the Convention had been perfectly defined. Other questions, such as those raised by the Credentials Committee in 2004, were therefore excluded from the scope of application of the Convention.

The Employer members took note that specific bodies had been created in the United States, with the sole goal to conduct consultations with the employers and workers. Regarding the workers' wish that these bodies have their meetings on a more regular basis, it should be pointed out that Convention No. 144 was silent about the frequency of the consultations and therefore, no legal parameter existed to make an assessment on the application of the Convention. In her intervention, the Government representative provided detailed information on the procedures and meetings recently organized by the Government in order to give effect to the Convention. The Employer members consequently stated that they associated themselves with the Committee of Experts' demand and encouraged the Government to continue to report on the latest measures taken on the application of the Convention. They hoped that this information would be reflected in the future report by the Committee of Experts.

The Worker member of the United States noted that the ratification of Convention No. 144 was important because it institutionalized a more effective and pragmatic process for tripartite consultation with the purpose, among other things, of increasing the number of ratifications by the United States. In the 55-year period from 1934, when the United States joined the ILO, until 1988, the United States ratified only five Conventions, all in the maritime family. It was not until the ratification of Convention No. 144 in 1988 that the United States, for the first time in the history of its membership in the ILO, began to consider in a much more serious way the ratification of selected ILO Conventions. From 1990 until 2001, the United States had ratified another five Conventions, including two of the ILO fundamental Conventions, Conventions Nos. 105 and 182. So in only 11 years, the United States had ratified as many Conventions as it had in the first 52 years of its membership in the ILO. He noted that the Government representative had conceded that not a single meeting of the President's Committee had been convened since May 2000, in over five years or since the current Administration had been in office. By way of defence, she had recalled that the President's Committee had not met from 1990 to 1996. He noted that during this period three important Conventions had been ratified, which stood in stark contrast to the current Administration, which had yet to ratify a Convention over which it had any responsibility.

He also noted that not a single meeting of TAPILS had been held since this Administration took office until last month. While he was pleased that the review process for the ratification of Convention No. 185 on seafarer's identity documents had begun, he emphasized that with the exception of this very recent development, the tripartite process, especially as it is related to future ratification of ILO Conventions, had virtually ground to a halt. Furthermore, the process of Senate ratification of Convention No. 111 had languished so long that the Department of Labour had felt compelled to update the TAPILS law and practice report that had been originally submitted to the Senate in 1988. The fact that the mere drafting of this update took years was a clear indication that the ratification of Convention No. 111 was not seen as an urgent matter by the Administration. The AFL-CIO had met with key Senators and their staff on a number of occasions. But the current Administration's party was in the majority in the Senate, and had not yet taken any steps to further ratification.

The speaker stated that he was encouraged by the words of the Government representative but would like to see more action. Specifically, he would like to see the convening of a President's Committee meeting so that TAPILS could be given new guidance on possible ratifications and a renewed mandate to push ahead with its work. He would like to see the Administration actively lobbying Congress for the ratification of Convention No. 111. He also would like to see the Administration support the activities of the International Labour Affairs Bureau of the Department of Labour (ILAB). Among other things, ILAB was the United States Government's primary point of contact with the ILO, and it did all the reporting and provided extra-budgetary funding for the ILO's field programmes. Sadly, every year it had been in office, this Administration had proposed to drastically reduce funding for ILAB. The repeated effort to virtually de-fund ILAB out of existence could not be reconciled with the statement that the United States took its membership in the ILO and its obligations under ratified Conventions seriously.

He concluded by stating that the United States Government had an important and timely opportunity to demonstrate to the world its commitment to the multilateral system and to the ILO in particular. It was time to get the tripartite consultative process in the United States moving again and to improve its ratification record. The AFL-CIO would do its part to bear the responsibility of tripartism. The onus of responsibility rested on the shoulders of the Administration, which up until recently had not shown a good record in this matter.

The Worker member of India stated that this case was a clear violation of Convention No. 144. For the first time since 1991, the United States Government had not convened a full consultative group in 2004 in preparation for the Conference. Only such a group could ensure effective and meaningful participation of all the social partners in the Conference. This lack of this preparation was a violation of democratic norms and was unbecoming for a country which never failed to project itself as the champion of democracy. He also noted the case before the Credentials Committee in 2004 in which the United States had not fully funded travel and subsistence expenses for the worker delegation to the Conference. He urged the Government to learn from countries which were not as rich and powerful as the United States but which would hardly think of not treating all parties in a delegation equally and not paying for relevant expenses. He urged the Government to address the comments of the Committee of Experts and to fully implement Convention No. 144.

The Government member of Cuba stated that the strengthening of tripartism and social dialogue was one of the strategic objectives of the ILO and that compliance with that principle therefore deserved special attention in its supervisory bodies, such as the present Committee. It was clear that greater attention should be focused on Governments that had only ratified a small number of Conventions. It would thus be advisable that the ILO, within the framework of the promotion of fundamental rights at work, also promoted in that country the ratification of other Conventions, such as Convention No. 87 on freedom of association, which formed the basis of the Convention under examination.

The Worker member of Pakistan stated that the United States, in its role as the leader of the developed world and as one of the states of chief industrial importance in the Governing Body, should play an exemplary role not only in the ratification of ILO Conventions but in their implementation in letter and spirit. He shared the concerns of the AFL-CIO and urged the Government to give effect to the recommendations of the Committee of Experts to ensure effective consultation in a manner that satisfied all parties concerned, and to follow up on the recommendations made by the Credentials Committee regarding a complaint made against the United States at the 92nd Session of the Conference in 2004. With regard to the Government representative's position that there were no specific procedures for consultation laid down in Convention No. 144, he pointed out that the Tripartite Consultation (Activities of the International Labour Organization) Recommendation, 1976 (No. 152), provided specific guidance on the implementation of the Convention, notably on the holding of yearly consultations (paragraph 7) and the issuance of an annual report on the workings of the procedures (paragraph 9). He concluded by noting that the United States often pressed for the ratification and implementation of fundamental Conventions in other countries. In the light of this, the United States should take the lead in ratifying and implementing such Conventions itself.

The Worker member of Singapore noted that Convention No. 144 upheld the core ILO principle of social dialogue. While the Convention allowed for some flexibility on how tripartite consultation should be carried out, there had to be at least regular discussions or meetings. There also had to be some agreement on the form of consultation that should take place. Otherwise, one party might understand "consultation" as an email exchange, whereas the other party might think otherwise. From the facts in this case, it appeared that the agreed form of consultation was a regular meeting. No other modes of consultation had been agreed upon.

She stated that the failure of the United States, a major world power, to comply with this Convention could send a wrong signal to the rest of the world. Already many voices pointed to the low ratification rate of ILO Conventions by the United States, and some countries had even used this as a justification for not ratifying. She hoped that the Government's refusal to convene a full meeting of the consultative group was not an indication of its lack of interest in international labour standards. She called on the Government to convene meetings as required, to conduct meaningful consultations with the social partners and to ratify more Conventions.

The Worker member of Cuba associated himself with the intervention of the Worker member of the United States. He considered it advisable that the statement of the Worker spokesperson would be duly taken into account in the conclusions, which should conform to the discussion and reflect the interests of the Workers' group and those of the workers of the world.

The Government representative stated that she had listened carefully and had taken note of the discussion. She recalled that there was regular tripartite consultation with the United States social partners before ILO Governing Body and Conference sessions. Her Government would continue to report fully on the application of Convention No. 144 and would respond to the questions raised in this discussion in its next report to the Committee of Experts.

The Worker members observed that, in view of its place in the world, the United States should behave in an exemplary manner. They urged the Government to reactivate the bodies competent in the field of tripartite consultations. They took note of the information provided by the Government representative to the effect that the consultations relating to the ratification of Conventions Nos. 111 and 185, which had been suspended, were resumed. These consultations had to be pursued with respect to Convention No. 144, and not only on an informal basis, which had been promised by the Government. The recourse to technology in no case could replace the dynamics of contacts between the Government and the social partners. The Government must take up the initiative and act more efficiently than during the past few years. It must give a basic impulse to the tripartism and thus show its good will, particularly by ratifying the new Conventions.

The Employer members stated that they had noted with interest the response of the Government according to which consultations were held in a manner satisfactory to the three parties, and that an appeal had been made to the employers and workers to also take initiatives in this domain. They hoped that the Government would continue to provide information on the measures taken and those that it envisaged taking to hold consultations in the framework of Convention No. 144.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Effective tripartite consultations. The Committee had requested information on the outcome of consultations held to re-examine the prospects of ratification of unratified Conventions and any follow-up thereto (Article 5(1)(c) of the Convention). In this regard, the Committee welcomes this progress and notes with interest the reinvigoration of the President’s Committee on the ILO (PC–ILO) and the Tripartite Advisory Panel on International Labour Standards (TAPILS), as reported by the Government in the report for the period ending July 2010. The Committee further notes that on 4 May 2010, the PC–ILO Committee called upon TAPILS to resume its work of reviewing the legal feasibility of the ratification of selected Conventions, such as the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), and the Maritime Labour Convention, 2006 (MLC, 2006). TAPILS was further asked to work toward the successful completion of the ratification process for the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and to submit to PC–ILO a shortlist of other Conventions that appear to be suitable for legal review and possible ratification in the near future. The Government further reported that TAPILS was convened on 20 May 2010 for the first time since 2005 and has started to work on the review of United States law and practice with regard to Convention No. 111; TAPILS also decided on the expedited review of Convention No. 185 and the MLC, 2006, in conjunction with the Coast Guard and other relevant agencies. TAPILS further intends to develop a shortlist of Conventions suitable for legal review. The Committee invites the Government to continue regularly to supply information on the outcome of and the follow-up to tripartite consultations relating to the PC–ILO mechanism, including, in particular, its function of reviewing selected Conventions for possible ratification.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Effective tripartite consultations. The Committee notes the information provided in the Government’s report and the comments of the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), received in September 2008. In reply to the Committee’s previous observation, the Government reports that the President’s Committee on the ILO continued to operate as a federal advisory committee, and was renewed to 30 September 2009. The ILO Consultative Group met four times and held other less formal consultations over the reporting period. The Government indicates that it submitted three reports prepared further to article 22 of the Constitution, two reports prepared further to article 19 of the Constitution, and the annual reports prepared as a follow-up to the 1998 Declaration, to the Tripartite Advisory Panel on International Labour Standards (TAPILS) for its review and comment. The Committee notes that the instruments adopted at the 94th, 95th and 96th Sessions of the Conference were submitted to the House of Representatives and the Senate on 27 June 2008. The Government further indicates that the Department of State hosted a tripartite meeting to discuss the prospects of ratification of the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), and the Maritime Labour Convention, 2006 (MLC, 2006), in February 2008. The Government states that it has continued to review both Conventions. In particular, the coast guard is conducting an intensive article-by-article analysis of the MLC, 2006, which will be followed by an intergovernmental review and, subsequently, an examination by TAPILS. In its comments, the AFL–CIO indicates that neither the tripartite meeting on matters of treaty law and procedure with respect to the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and others, nor the TAPILS meeting on Convention No. 185 have taken place. The AFL–CIO states that there has been no follow-up to the tripartite consultations held to consider the prospects of ratification of Convention No. 185 and the MLC, 2006, and that it has seen no evidence of any progress made towards ratification of Convention No. 185, or the MLC, 2006. The AFL–CIO states that, while suggestions were raised in the tripartite consultations on ways to resolve certain issues regarding Convention No. 185, there has been no follow-up from the Government. The Committee again invites the Government and the social partners to continue to report on measures taken to promote tripartite consultations on international labour standards, as required by Convention No. 144, and to provide information on the outcome of consultations held to re-examine the prospects of ratification of unratified ILO Conventions and any follow-up thereto (Article 5, paragraph 1(c), of the Convention).

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Follow-up of the discussion at the 96th Session of the International Labour Conference (June 2007). Subsequent to its 2006 observation, the Committee notes the conclusions of the tripartite discussion that took place in the Conference Committee in June 2007. The Conference Committee trusted that the Government and the social partners would deepen their dialogue on all matters covered by the Convention in order to engage in a review of the manner in which the Convention was applied in practice. The Conference Committee thus hoped that the report for examination by the Committee of Experts would include information on the initiatives taken to give satisfaction to all parties involved in the consultations required by the Convention. To this end, the Government provided a detailed report, on which the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) forwarded its comments on 25 September 2007 and the Government responded in a communication received on 15 November 2007.

2. Effective tripartite consultations. The Government reiterated that it was prepared to review the manner in which the Convention was being applied to ensure that all stakeholders, including the AFL–CIO, take appropriate measures to achieve a satisfactory application. The Government indicates that since the period covered by its last report, the Department of Labor held three meetings of the Consultative Group, one of the two subgroups of the Tripartite Advisory Panel on International Labor Standards (TAPILS). A meeting was held on 24 September 2007 to engage in an open and frank discussion of the implementation of the Convention in light of the conclusions of the Committee of Experts and the Conference Committee. In this regard, the AFL–CIO indicates that it is too early to tell whether the meeting signals the beginning of a serious effort to ensure effective consultations, as the Convention requires. The AFL–CIO reiterates that the effectiveness of tripartism should be measured by the ratification of Conventions and refers to Article 5, paragraph 1(b)–(c), of the Convention. The AFL–CIO considers that the Government is not engaging in effective tripartite consultations, if it makes feeble attempts or none at all to move the submission of Conventions to the Senate or periodically re-examine the measures that might be taken towards ratifications of unratified Conventions. In its reply of 15 November 2007, the Government states that the ratification of Conventions is a sovereign and discretionary act. It refers to paragraph 85 of the 2000 General Survey on tripartite consultation in which the Committee of Experts noted that the obligation stemming from article 19 of the Constitution to submit the instruments adopted by the Conference to Parliament does not require governments to propose ratification – or even application – of the instruments under consideration. The Government indicates that this discretion applies even for the case of the ILO’s fundamental Conventions, notwithstanding the obligation of governments to respect, promote and realize the principles that are the subject of those Conventions. The Committee notes that the Government’s report indicates that no instruments were submitted to the competent authorities during the reporting period and that no meetings of TAPILS were held during the reporting period with respect to the re-examination, at appropriate intervals, of unratified Conventions and of Recommendations. The Committee thus reiterates its previous invitation to the Government and social partners to hold effective consultations on the proposals made to Congress when submitting the instruments adopted by the Conference (Article 5, paragraph 1(b), of the Convention). It further invites the stakeholders concerned to hold tripartite consultations for the re-examination of unratified Conventions and Recommendations to which effect has not yet been given, so that it can consider what measures might be taken to promote their implementation and ratification, as appropriate (Article 5, paragraph 1(c), of the Convention). In this regard, the Committee recalls, as did the Conference Committee, that an updated document including the results of tripartite consultations had been submitted to the Senate Foreign Relations Committee in January 2007, with a view to obtaining consent for the ratification of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). In this respect, the Committee notes with interest that the Department of Labor pledged, at the meeting held on 24 September 2007, to organize a tripartite meeting at which the Departments of State and Justice would discuss the current difficulties with the social partners with regard to the matters of treaty law and procedure potentially affecting not only ratification of Convention No. 111 but other Conventions as well. The Government also announced its intention to resume consultations in TAPILS on the Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), as soon as the internal governmental review had been completed. The Committee reiterates its interest in being kept informed, through the Government’s next report, on any progress made with regard to the abovementioned Conventions, as well as on the initiatives taken to give satisfaction to all parties involved in the consultations required by the Convention.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

1. Effective tripartite consultations. The Committee notes the Government’s report for the period ending July 2006, the comments of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), which were forwarded to the Government in November 2005, and the tripartite discussion that took place in June 2005 in the Conference Committee on the application of this Convention. The Conference Committee hoped that the consultations concerning the ratification of Conventions Nos. 111 and 185 would be concluded in the near future. It requested the Government to take all the appropriate measures to promote tripartite dialogue on international labour standards and expressed the hope that in its next report the Government would provide information on the progress made to guarantee the holding in practice of tripartite consultations in a manner that was satisfactory for all the parties concerned.

2. In its 2005 comments, the AFL-CIO once again alleges a lack of commitment by the Government to the principles and obligations of the Convention. The AFL-CIO maintains that there has been little progress toward reaching the goal of the holding in practice of tripartite consultations in a manner that was satisfactory for all the parties concerned. It adds that progress toward the ratification of Convention No. 185 appears to be mired in inter-agency discussions about immigration security measures and that no progress was achieved with regard to the ratification of Convention No. 111. The AFL-CIO maintains that, without sustained and meaningful work by the President’s Committee on the ILO, the United States will continue to lag seriously behind the overwhelming majority of ILO Members in the ratification of Conventions, including those that are the foundation of the 1998 Declaration.

3. The Committee notes that the Government’s report does not include a reply to the AFL-CIO’s comments. It notes that there was no meeting of the President’s Committee on the ILO, but that the ILO Consultative Group met six times during the reporting period. The Tripartite Advisory Panel on International Labour Standards (TAPILS) met formally on one occasion during the period, principally to initiate a review of Convention No. 185. The Government includes in its report the agendas of those meetings and other information concerning the matters covered by Article 5, paragraph 1, of the Convention. The Committee refers to its 2004 observation and invites the Government and the social partners to address the concerns of all participants relating to the operation of the procedures required to ensure effective consultations within the meaning of the Convention. It also refers to the 2005 tripartite discussion in the Conference Committee and hopes that the Government and the social partners will re-examine the manner in which the Convention is being applied in order to ensure that all stakeholders take appropriate measures to achieve a satisfactory application.

[The Government is asked to reply in detail to the present comments in 2007.]

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

1. The Committee notes the Government’s report for the period 2001-04 and the comments of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), which were attached to the Government’s report. The Government indicates that the consultative group met six times during the reporting period and it attached the agendas of those meetings to the report. The Tripartite Advisory Panel on International Labour Standards (TAPILS) did not meet formally during the reporting period but its working group met twice in connection with ratification of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and the full panel was consulted through correspondence. Consultations are under way regarding Seafarers’ Identity Documents Convention (Revised), 2003 (No. 185), adopted by the Conference at its 91st Session. The report attached also the annual reports to the President on the activities of the President’s Committee on the ILO for the fiscal years 2001, 2002 and 2003.

2. The AFL-CIO states that since ratification of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), and until the last three years, the work of the President’s Committee on the International Labour Organization and its two subgroups, the consultative group and TAPILS, resulted in identification of Conventions for potential ratification, preparation of the necessary reports for submission of those instruments to the Senate and a range of tripartite activities in furtherance of the United States’ participation at the ILO. The AFL-CIO states that this process has virtually ground to a halt during the last three periods and also observes that:

-  during the last three years, the Secretary of Labor has failed to call even one meeting of the Committee;

-  TAPILS has not met at all during this reporting period, nor did TAPILS meet during the period 1999-2001 but its working group met twice and two Conventions were ratified;

-  the functioning of the procedures is very slow: in 2002 the ranking member of the Senate Foreign Affairs Committee expressed interest in having the President resubmit Convention No. 111 to the Senate but since then the working group has met only once and documentation proposed by the AFL-CIO was not distributed by the Government. In the opinion of the AFL-CIO the Government has allowed the tripartite process to languish;

-  referring to the Government’s action preceding the 2004 International Labour Conference, the AFL-CIO indicates that for the first time since 1991, the Government did not convene a full meeting of the consultative group in preparation for the Conference. Instead, a much smaller subgroup met and the full group of workers’ and employers’ representatives did not have the opportunity to prepare for productive work at the Conference.

Finally, the AFL-CIO recalls that the International Confederation of Free Trade Unions (ICFTU) filed a complaint with the Credentials Committee at the 92nd Session of the Conference 2004, concerning the partial payment of the travel and subsistence expenses of the Workers’ delegation of the United States alleging that the Government had violated article 13, paragraph 2(a), of the ILO Constitution. The Credentials Committee concluded that "… the ability of the Government delegation and the Workers’ delegation to actively participate in the Conference plenary and technical committees cannot be considered comparable. Noting this imbalance and given the circumstances, the Committee trusts that the Government will cover the expenses of a sufficient number of advisors in the Worker’s delegation to ensure that the ability of workers to participate in the committees and the plenary is similar to that of the Government". The Credentials Committee expressed its confidence that the Government and the social partners "will find opportunities to discuss these issues in the course of the consultations leading to the preparation of each session of the Conference" (ILC, 92nd Session, 2004, Provisional Record 6C, paragraph 29). The AFL-CIO believes that this illustrates the Government’s retreat from full commitment to the tripartite structure and process.

3. The Committee notes that the issues raised in this observation are related to the effectiveness of the consultations required by Article 2, paragraph 1, of the Convention. It recalls that, in accordance with this provision, the Government and the social partners should establish procedures which ensure effective consultations in a manner that is satisfactory to all parties concerned. It therefore asks the Government to provide information in its next report on the measures taken to ensure effective tripartite consultation within the meaning of the Convention, including particulars of the consultations on each of the matters set out in Article 5 and to indicate the recommendations made or the measures adopted to resolve the issues raised in this observation.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee has noted with interest the first detailed report on the measures taken to give effect to the Convention. It would be grateful if the Government would continue supplying information, in its future reports, on the manner in which the Convention is applied, indicating the nature of any reports or recommendations made as a result of the consultations held on the matters set out in Article 5 of the Convention, in particular concerning the consultations entrusted to the Tripartite Advisory Panel on International Labour Standards (TAPILS) on the matters set out in paragraph 1(c) of this Article.